1)     Why do I need to copyright my listing content? What are the current concerns and advantages?

 

Copyright law protects the authors of creative works from others (called “copyright infringers” or just “infringers”) who would use those works without the authors’ permission. Prompt registration of copyright with the United States Copyright Office is required in order to get attorney fees and a special kind of damages against infringers. Registration is also a prerequisite to suing an infringer. TMLS can register all the works in the MLS database, and spread the cost of a few hundred dollars a year over all the participants and subscribers, and TMLS can take steps to sue anyone who infringes the copyrights in the MLS data. For brokers and agents to do this individually would cost a great deal more, and it would entail efforts that many brokers and agents may not want to exert.

 

To achieve these objectives, TMLS must obtain ownership of the copyrights in the materials it will register and enforce. TMLS has created a program where listing Brokers-In-Charge (Participants) decide who will be responsible for registering and enforcing copyrights; TMLS or the listing Broker. The listing broker makes the determination in paragraph 21 of TMLS’s Participant Agreement. If the broker chooses Option I and permits TMLS to acquire the copyrights in data content relating to their listings, TMLS promises in the Participant Agreement to (1) obtain copyrights from the brokers’ agents; (2) register the copyrights; (3) take reasonable actions to prevent and pursue infringement; and (4) grant back to the listing broker unfettered rights to use data relating to the broker’s own listings. If the broker chooses Option II, TMLS is not required to do any of these things. In either case, though, TMLS’s promises to refrain from distributing the broker’s listing data (except for core MLS purposes) unless MLS has the broker’s consent.

 

TMLS’s attorneys have advised TMLS, and the TMLS board of directors has determined, that this approach is the most cost-effective way to prevent misuse of data relating to brokers’ listings.

 

Brokers who prefer not to take part can select Option II of the Agreement. They can negotiate with their own agents regarding copyright ownership; they will be responsible for their own copyright registrations and for preventing third parties from making unauthorized use of the brokers’ listing data. From these brokers and the agents in their offices, TMLS obtains only a license to use the copyright-protected content for core MLS purposes.

 

2)     Who currently retains ownership of listing copyrights?

 

In the absence of written agreements to the contrary, the owner of the copyright in a photo or in original text is the author – the human being who created it, in most cases, the agent or assistant who wrote the text or snapped the photo. If an employee (not an independent contractor) creates a work within the scope of her employment, then the employer is the author. (This is not as common in the real estate industry as other industries.)

 

If someone owns a copyright and allows someone else to use it, the owner is said to be “licensing” the copyright. Just because an agent submits the photo to her broker does not mean she transfers ownership to her broker. Just because a photographer takes a photo for an agent and permits the agent to put it on MLS does not mean that the photographer has given up his copyrights. Instead, they are licensing their rights to be used for particular purposes.

 

3)     Which portion of the listing is copyright-protected?

 

Copyright protects anything that is the result of a creative process, including original text (like remarks) and perhaps even the listing price; photographs, whether taken with digital or traditional equipment; virtual tours (though the creators of tours often retain their copyrights); and any other creative text and graphic materials. Facts cannot be copyright-protected; the facts that the home on 123 Elm Street is for sale and that it has three bedrooms and encompasses approximately 2,100 square feet are not subject to copyright protection. (Copyright also does not relate to product or service names; designations of the origins of products and services, including product names and logos, are the subject of trademark law, something completely different.)

 

4)     Would granting copyrights to MLS work against my fiduciary responsibility to my seller/client?

 

TMLS cannot give you legal advice about your fiduciary duties. TMLS’s attorneys believe, however, that copyright protects agents themselves and their customers from those who take listing data without permission. Sometimes, agent and seller interests may be at odds. For example, imagine an agent takes a set of particularly fine photos of her listing in June, but the house does not sell before the listing expires; imagine that the seller lists with another broker in November, but wants the ‘summer’ pictures from the first agent on MLS. Under copyright law, the first agent must consent before the second broker or seller can use her photos. If the seller claimed the first agent had an agency/fiduciary duty to allow the seller to reuse the pictures, TMLS would direct the first agent to her own attorney for counsel.

 

5)     How can participating in the TMLS copyright efforts benefit my business?

 

It provides a remedy when other folks take your work and profit from it without your permission.

 

6)     What will the cost be to me?

 

The cost is included in your MLS fees. TMLS does not anticipate the need to increase dues in order to pay for its copyright efforts.

 

7)      Can TMLS release/sell our data without permission from the Participants?

 

No. The agreement between TMLS and the Participants ensures that Participants can opt out of any ‘non-core’ use of the MLS data that TMLS considers. Non-core uses include any distribution to non-Participants, like consumers (except under the VOW policy), or other businesses.

 

8)     As a Broker, will I retain my right to give third party entities the right to use my listing data? Will there be any restrictions?

 

The Participant and Subscriber agreements ensure that the listing broker has an unrestricted right to use content relating to her own listings, including licensing them for use by third parties (and even including the right to allow the third parties to license to other third parties). MLS commits in the agreements to support the brokers’ unfettered use of their own listing content.

 

9)     Will there need to be a separate agreement between broker and agent? Can the broker incorporate the language into their Independent Contractor Agreement or will it need to be a separate document?

 

The agreements ensure that brokers that choose Option I in the Participant Agreement obtain all the rights they will need from their agents without the need for separate agreements relating to copyright between brokers and agents. Nevertheless, the brokers can choose to address copyrights in their independent contractor agreements.

 

Brokers that choose Option II may wish to obtain copyright assignments from their agents, but that would be subject to negotiation between brokers and agents.

 

10)  How will this impact an individual agent? Will they lose all rights to their photos and text?

 

If a broker takes choose Option I in the Participant Agreement, TMLS takes copyright ownership in the listing content each of the broker’s agents submits to the service. The listing broker, though not the owner of the copyrights, has a license from TMLS to use that content any way the listing broker wishes. Individual agents can negotiate in their independent contractor agreements with brokers the right to continue using listing content they supply under particular circumstances. As for brokers that choose Option II, their agents continue to hold copyrights in works they create unless their independent contractor agreements with their brokers provide otherwise.

 

11)  How is the copyright initiative handled if an agent contracts with a professional photographer who already copyrights their photos?

 

Unless the agent has a written agreement with the photographer that transfers the copyrights from the photographer, the photographer continues to own the copyrights. The agent has only a license to use it for the purposes the photographer permits. The TMLS copyright efforts do not change these circumstances because the agent cannot transfer to TMLS a copyright that the agent does not own.

 

12)  What if the seller does not agree to the copyright terms?

 

Sellers generally do not contribute copyright-protected material for inclusion in MLS. To the extent that the seller has taken a picture or drafted remarks for MLS, the seller would be treated like the photographer in the previous question. TMLS does not require brokers or sellers to enter listing agreements or other agreements where the seller must transfer ownership of copyrights to the listing broker or to TMLS. If a broker wishes to obtain copyrights from the seller, the broker should negotiate those terms with the seller. TMLS does require that the listing broker (and the seller and any photographers from whom the listing broker obtains copyright-protected work) have the rights necessary to provide the materials to MLS. Thus, if MLS were sued because a broker submitted someone’s copyright-protected work without permission, the agreements would require the infringing broker to pay MLS’s defense costs.

 

Revised: 4/11/2011